Citation Nr: 0419198
Decision Date: 07/16/04 Archive Date: 07/27/04
DOCKET NO. 96-41 558 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida
THE ISSUES
1. Entitlement to a rating higher than 20 percent for gout.
2. Entitlement to a rating higher than 20 percent for a
right ankle disability.
3. Entitlement to a higher (compensable) rating for
bilateral hearing loss.
4. Entitlement to a rating higher than 10 percent for a
right knee disability.
5. Entitlement to a rating higher than 10 percent for
bilateral pes planus with right calcaneal spur.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The veteran had active service from January 1973 to August
1980 and from May 1982 to November 1994.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from multiple RO rating decisions. A
February 1995 RO decision granted service connection and a
noncompensable rating for gout; granted service connection
and a noncompensable rating for a right ankle disability;
granted service connection and a noncompensable rating for
left ear hearing loss; and granted service connection and a
noncompensable rating for a right knee disability. The
veteran appealed for higher ratings. Service connection was
also denied for right ear hearing loss. A July 1996 RO
rating decision increased the rating for the veteran's right
ankle disability to 10 percent. A March 1998 RO decision
increased the rating for the veteran's right ankle disability
to 20 percent and increased the rating for his right knee
disability to 10 percent. A February 1999 RO decision
granted service connection for right ear hearing loss and
denied a higher (compensable) rating for bilateral hearing
loss. The RO decision also increased the rating for gout to
20 percent. The veteran continued to appeal for higher
ratings for such disorders.
In a February 2001 decision, the Board denied a higher rating
for the veteran's bilateral hearing loss and right knee
disability. The Board remanded the remaining issues of
higher ratings for gout and for a right ankle disability to
the RO. In May 2001, the veteran filed a motion for
reconsideration, which was denied by the Board in July 2001.
The veteran then appealed the denial of higher ratings for
bilateral hearing loss and for a right knee disability to the
U.S Court of Appeals for Veterans Claims (Court). By an
April 2003 order, the Court vacated the Board's decision, as
to such issues, and remanded the case to the Board for
further action. The veteran testified at a Board hearing in
Washington, D.C., in October 2003.
The Board notes that an August 1999 RO decision granted
service connection and a noncompensable rating for bilateral
pes planus (flat feet) with right calcaneal spur, and in that
month notified him of the decision. In December 1999, the
veteran filed a timely notice of disagreement. The RO sent
him a statement of the case in March 2000. In February 2001,
a statement from the veteran's representative was received at
the Board which included a statement from the veteran to his
representative in which he stated that he had forwarded a VA
Form 9 to the RO in March 2000, as to the issue of a higher
rating for bilateral pes planus. A copy of the VA Form 9,
dated in March 2000 (which would be timely), was also
enclosed. The Board mentioned such documents in the February
2001 decision and referred the matter to the RO for further
action. In a November 2002, the RO considered the statements
received in February 2001 as a new claim for an increased
rating for bilateral pes planus with right calcaneal spur and
denied such claim. The RO also determined that a timely
appeal had not been filed as to the August 1999 RO decision.
The veteran has subsequently appealed both issues while
arguing that he did file a timely substantive appeal as to
the rating assigned for his service-connected bilateral pes
planus with right calcaneal spur in August 1999. In
reviewing the evidence, the Board has determined that the
veteran did file a timely appeal to the August 1999 RO
decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§§ 20.202, 20.302 (2003). Although the March 2000 VA Form 9,
is not actually date-stamped as of that date, the veteran has
consistently alleged, including under oath, that he timely
filed such document with the RO and the Board finds his
statements to be credible. In several statements on appeal,
the veteran has continually indicated that he was appealing
such issue. As the Board has determined that the veteran
filed a timely substantive appeal as to the August 1999 RO
decision, such issue (as denied in the November 2002 RO
decision) is moot and will not be addressed on appeal. The
Board will address the issue of a higher rating for bilateral
pes planus with right calcaneal spur as the veteran has
continued to appeal for a higher rating.
The present Board decision addresses the issue of a higher
rating for bilateral pes planus with right calcaneal spur.
The issues of higher ratings for bilateral hearing loss, a
right knee disability, gout, and a right ankle disability are
the subject of the remand at the end of the decision.
FINDINGS OF FACT
The veteran's service-connected bilateral pes planus with
right calcaneal spur is no more than moderate in degree;
severe pes planus is not shown.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for
bilateral pes planus with right calcaneal spur have not been
met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a,
Diagnostic Code 5276 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Air Force from
January 1973 to August 1980 and from May 1982 to November
1994.
His service medical records for his first period of service
from January 1973 to August 1980 do not refer to treatment
foot problems. A November 1979 examination report included
notations that the veteran's lower extremities were normal.
The service medical records for the veteran's second period
of service from May 1982 to November 1994 show treatment for
multiple foot problems. A March 1984 treatment entry noted
that the he was seen for complaints of periodic right heel
pain with walking or jogging. The assessment was right heel
pain, etiology unknown, rule out spur versus plantar
fasciitis, and possible pes planus. A March 1984
consultation report related an assessment of inferior
calcaneal bursitis right foot, pronation syndrome, and rule
out plantar fasciitis. A July 1984 emergency care and
treatment report noted that the veteran suffered a metatarsal
stress fracture of the right foot. An October 1984 entry
related an assessment of a right heel spur and a November
1984 consultation report noted an impression of plantar
fasciitis with heel spur syndrome. An August 1986 entry
indicated that the veteran was seen with a past history of
bone spurs and that he requested arch supports. An August
1991 treatment entry noted that the veteran had bilateral
flat feet. An October 1991 entry noted that the veteran
complained of mild discomfort with running small distances.
The examiner noted that he had a right pronated foot and
bilateral flat feet. The assessment included residual foot
fracture pain. On a medical history form at the time of the
January 1994 separation examination, the veteran reported
that he had foot trouble. The reviewing examiner noted that
the veteran fractured the fourth metatarsal of his right foot
in 1986 and that he presently wore arch supports for foot
pain. The January 1994 objective separation examination
report included a notation that the veteran's lower
extremities were normal.
In December 1994, the RO received the veteran's claim for
service connection for foot pain.
The veteran underwent a VA general medical examination in
January 1995. The examiner reported that the veteran had
bilateral flat feet. The diagnoses referred to other
disorders.
A private treatment record dated in November 1995 did not
refer to foot problems.
VA treatment records dated from April 1997 to December 1998,
including examination reports, show treatment for multiple
disorders.
Private treatment records dated from October 1998 to March
1999 show treatment for ankle complaints.
In a May 1999 statement, the veteran reported that he had
totally flat feet. He stated that he was issued arch
supports during service. The veteran reported that his
condition was painful and that it limited his ability to
stand for long duration. He noted that he had a spur on his
right heel which would act up occasionally and cause pain.
Private treatment records dated from June 1999 to August 1999
refer to continued treatment for ankle complaints.
In August 1999, the RO granted service connection and a 10
percent rating for bilateral pes planus (flat feet) with
right calcaneal spur, effective December 1, 1994 (day after
release from active duty).
VA treatment records dated from October 1999 to February 2001
refer to continued treatment for several disorders. A May
2000 entry noted that the veteran complained of pain in areas
including both feet. A February 2001 entry noted that he was
seen for a six to eight week flare-up of right heel pain. It
was noted that he had a history of a good response to two
different injections of cortisone in the distant past with
the last time over a year ago. The veteran reported that his
symptoms were progressive throughout the day and that they
were confined to the plantar aspect of the right heel with no
radiculopathy. It was noted that the veteran had inserts and
appropriate shoes. The examiner indicated that the veteran
was tender to palpation at the plantar flexion origin and
that he had moderate flexible pes planus. The impression was
plantar fasciitis right heel. A February 2001 radiological
report, as to the right foot, noted that there were small
plantar calcaneal spurs of doubtful import with some small
spurs on the lateral margins of the great toe metatarsal
phalangeal joint. The impression was minor degenerative
changes at the first metatarsal phalangeal joint. An April
2001 entry reported that the veteran was seen for right heel
pain. It was noted that he was tender to palpation at the
plantar calcaneal at the plantar flexion origin. The
assessment was plantar fasciitis.
The veteran underwent a VA orthopedic examination in
September 2001. The examiner noted that he had mildly
pronated feet with grade I pes planus, bilaterally. The
examiner stated that there was no evidence of Achilles
tendons spasm or displacement. It was noted that the veteran
did have tenderness to palpation of the plantar heel pad
region of the right foot. The examiner stated that the
veteran had difficulty with heel and toe walking secondary to
pain and that he was able to slow squat and arise again with
more weight on the left. The dorsalis pedis pulses were
intact in both feet. The impression included bilateral pes
planus with right heel spur syndrome. A September 2001
radiological report, as to the right foot, related an
impression of minor degenerative changes in the first
metatarsal phalangeal joint.
A VA treatment record dated in November 2002 and a private
treatment record dated in December 2002 refer to continued
treatment.
In a December 2002 statement, the veteran reported that he
had flat feet and that his feet were pronated. He indicated
that he had a heel spur and that he had loss of a normal
plantar arch. The veteran stated that he also had plantar
fasciitis and that his treatment had given him minimal
relief.
VA treatment records dated from January 2003 to June 2003
reflect treatment for several disorders. A June 2003
treatment entry noted that the veteran had a flat right foot
with right plantar heel tenderness. The impression included
right plantar fasciitis and pes planus, right foot.
At the October 2003 Board hearing, the veteran testified that
he had bilateral flat feet. He reported that he had
deformities and that his feet were pronated. The veteran
stated that he had received cortisone injections in his feet
on three different occasions and that he had a well-
documented spurring in the heel. He also noted that he had
been diagnosed with plantar fasciitis.
II. Analysis
Through correspondence, the rating decision, and the
statement of the case, the veteran has been informed of the
evidence necessary to substantiate his claim for a rating
higher than 10 percent for bilateral pes planus with right
calcaneal spur. VA examinations have been provided, and
relevant medical records obtained. The Board finds that the
notice and duty to assist provisions of the law have been
satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities. Separate
diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
A 10 percent rating is warranted for moderate bilateral
flatfoot (pes planus), with the weight-bearing line over or
medial to the great toe, inward bowing of the tendo Achillis,
pain on manipulation and use of the feet. A 30 percent
rating requires severe bilateral flatfoot, with objective
evidence of marked deformity (pronation, abduction, etc.),
pain on manipulation and use accentuated, indication of
swelling on use, characteristic callosities. 38 C.F.R.
§ 4.71a, Diagnostic Code 5276.
The September 2001 VA orthopedic examination noted that the
veteran had mildly pronated feet with grade I pes planus,
bilaterally. The examiner stated that there was no evidence
of Achilles tendon spasm or displacement. It was noted that
the veteran had tenderness to palpation of the plantar heel
pad region of the right foot. The impression included
bilateral pes planus with right heel spur syndrome.
Additionally, a June 2003 treatment entry noted that the
veteran had a flat right foot with right plantar heel
tenderness. The impression, at that time, included right
plantar fasciitis and pes planus, right foot.
The medical evidence from recent years does not indicate
findings of severe (30 percent) bilateral pes planus as set
forth in Diagnostic Code 5276. Although the veteran was
noted to have mildly pronated feet at the September 2001
examination, additional symptomatology such as characteristic
callosities and swelling on use, have not been shown. The
veteran has complained of pain with use of his feet, but such
is one of the requirements of the current 10 percent rating
for pes planus. The evidence as a whole shows no more than
moderate (10 percent) pes planus (flat feet). The disability
picture more nearly approximate the criteria for a 10 percent
rating than a 30 percent rating under Code 5276, and thus the
lower rating of 10 percent is to be assigned. 38 C.F.R.
§ 4.7.
This is an initial rating case, on the granting of service
connection. The Board finds that there are no distinct
periods of time, since the effective date of service
connection, during which the veteran's bilateral pes planus
with right calcaneal spur was more than 10 percent disabling,
and thus "staged ratings" other than 10 percent are not
warranted. Fenderson v. West, 12 Vet.App. 119 (1999).
The preponderance of the evidence is against the claim for an
increase in the 10 percent rating for bilateral pes planus
with right calcaneal spur. Thus, the benefit-of-the-doubt
rule does not apply, and the claim must be denied. 38
U.S.CA. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
ORDER
A higher rating for bilateral pes planus with right calcaneal
spur is denied.
REMAND
The other issues on appeal are higher ratings for gout, a
right ankle disability, bilateral hearing loss, and a right
knee disability.
As noted above, in a February 2001 decision, the Board denied
higher ratings for the veteran's service-connected bilateral
hearing loss and right knee disability. The Board remanded
the remaining issues of higher ratings for gout and for a
right ankle disability to the RO for further development.
The veteran appealed the denial of the issues of higher
ratings for bilateral hearing loss and a right knee
disability to the Court. By an April 2003 order, the Court
vacated the Board's decision, as to such issues, and remanded
the case to the Board for further action.
The stated purpose of the Court order is for the Board to
address compliance with legal provisions on the VA's duty to
notify the claimant with regard to evidence and information
necessary to substantiate his claims, including what portion
he is to provide and what portion the VA is to provide. See
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)
(2003); Charles v. Principi, 16 Vet.App. 370 (2002);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board
itself may not provide such notice to the claimant. See
Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339 (2003).
The Board notes that the deficiencies identified by the Court
also affect the remaining issues of higher ratings for gout
and a right ankle disability. In light of the Court's order,
and as the Court's decision also affects the remaining issues
of higher ratings for gout and a right ankle disability, the
Board is returning these issues to the RO to assure VA
compliance with the notice provisions of the law.
Accordingly, these issues are remanded for the following:
1. The RO should send the veteran written
notice concerning the evidence and
information necessary to substantiate his
claims for higher ratings for gout, a
right ankle disability, bilateral hearing
loss, and a right knee disability,
including what portion he is to provide
and what portion the VA is to provide.
2. After assuring compliance with the
notice and duty to assist provisions of
the law, the RO should review the claims
for higher ratings for gout, a right ankle
disability, bilateral hearing loss, and a
right knee disability. If the claims are
denied, the veteran should be provided
with a supplemental statement of the case,
and given an opportunity to respond,
before the case is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
______________________________________________
L. W. TOBIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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